Prop 8 Ruling: Dissenting Opinion May Guide Same-Sex Marriage Foes at the Supreme Court

Tuesday's federal appeals court decision ruling California's Proposition 8 unconstitutional was seen as an opinion carefully tailored to withstand review from the U.S. Supreme Court.

While the Ninth Circuit Court of Appeals could have said broadly that same-sex marriage is a constitutional right, the majority of the three-judge court panel wrote a narrow opinion based strictly on Supreme Court precedent and the facts surrounding the Prop 8 case.

But the dissenting opinion from Judge N. Randy Smith, whom President George W. Bush picked for the bench, also offers a legal strategy for same-sex marriage opponents to derail the Ninth Circuit's ruling before the Supreme Court.

Decision and Dissent

Essentially, the majority opinion said Prop 8 -- a voter-approved 2008 constitutional amendment banning same-sex marriage -- violated the U.S. Constitution because the ballot measure revoked rights gays and lesbians in the state already enjoyed; California's high court had legalized gay marriage that year.

That fact, the majority wrote, put the Prop 8 issue in line with a landmark 1996 Supreme Court decision, Romer v. Evans, overturning a voter-approved amendment to Colorado's constitution prohibiting any laws or court actions that protect the gay community from discrimination.

Smith rejects that finding, saying that Proposition 8 does not burden gays and lesbians to the same extent as Colorado's ballot measure because same-sex couples in California still had all legal rights associated with marriage, just not the title.

Smith's dissent instead expounds on an obscure precedent -- even for Supreme Court cases -- from 1971 that the Ninth Circuit majority dispenses with... in a foot note.

The case Smith cites was a one-sentence U.S. Supreme Court ruling upholding a 1971 Minnesota Supreme Court decision, Baker v. Nelson, allowing a local official to deny two men a marriage certificate because marriage was considered a union between a man and a woman.

Ultimately, Smith concludes that Baker is different from the case at hand, but also notes that other federal courts have indicated that Baker... at least stands for exercising 'restraint' when it comes to addressing due process and equal protection challenges against laws prohibiting marriage by same-sex couples.

Same-sex marriage opponents who are party to the California case can use this language to argue that Supreme Court justices should restrain themselves from sustaining the Ninth Circuit's decision overturning Prop 8.

'Legitimate governmental interest'

After rejecting Romer's application to the California case, Smith looks into whether Proposition 8 rationally relates to any independent legitimate governmental interest.

Smith found a way to reject the majority's opinion that Prop 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.

Prop 8 supporters have argued that maintaining marriage as an exclusive institution for heterosexual couples promotes the optimal environment for raising children.

Smith never decides on that assertion one way or another, but he does say that Prop 8 does nothing to weaken the right of California's same-sex couples to adopt and raise children. For Smith, this position means that Prop 8 supporters have a low bar to clear in proving there is a governmental interest in denying same-sex couples the title of marriage.

The people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting, he wrote.

Targeting Justice Kennedy

For both sides of the Prop 8 legal row, these opinions are squarely directed at Justice Anthony Kennedy, a key swing vote who authored the landmark opinion on Romer v. Evans.

But it may be difficult to suss out which side has the better chance of appealing to Kennedy -- that is, if the Supreme Court even takes this particular case.

Will it be same-sex marriage supporters who believe Kennedy will see Prop 8 as an unconstitutional revocation of a certain group of people's rights? Or will it be Prop 8 supporters who say judicial restraint is required for cases concerning the Equal Protection Clause of the Fourteenth Amendment?